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THE NEW YORKER, OCTOBER 27, 2014
The majority of Obama's appointments have been women and nonwhite males.
ANNALS OF LAW
THE OBAMA BRIEF
The President considers his judicial legacy.
BY JEFFREY TOOBIN
In July, a three-judge panel of the
United States Court of Appeals for the
D.C. Circuit issued a ruling that threat-
ened the future of President Obama's
A ordable Care Act. By a vote of two to
one, the court held, in Halbig v. Burwell,
that the insurance subsidies that allow
millions of Americans to buy health insur-
ance were contrary to the text of the law
and thus were illegal. If such a decision had
been made earlier in Obama's tenure, law-
yers for his Administration would have
been left with a single, risky option: an ap-
peal to the politically polarized, and usu-
ally conservative, Supreme Court.
This year, the lawyers had another
choice. When President Obama took
o ce, the full D.C. Circuit had six judges
appointed by Republican Presidents, three
named by Democrats, and two vacancies.
By the time of the Halbig decision,
Obama had placed four judges on the
D.C. court, which shifted its composition
to seven Democratic appointees and four
Republicans. In light of this realignment,
the Obama Administration asked the full
D.C. Circuit to vacate the panel's decision
and rehear the Halbig case en banc---that
is, with all the court's active judges partic-
ipating. The full court promptly agreed
with the request, and the decision that
would have crippled Obamacare is no lon-
ger on the books. Oral argument before
the full court is now set for December.
The transformation of the D.C. Circuit
has been replicated in federal courts around
the country. Obama has had two hundred
and eighty judges confirmed, which rep-
resents about a third of the federal judi-
ciary.Two of his choices, Sonia Sotomayor
and Elena Kagan, were nominated to the
Supreme Court; fifty-three were named to
the circuit courts of appeals, two hundred
and twenty-three to the district courts, and
two to the Court of International Trade.
When Obama took o ce, Republican
appointees controlled ten of the thirteen
circuit courts of appeals; Democratic ap-
pointees now constitute a majority in nine
circuits. Because federal judges have life
tenure, nearly all of Obama's judges will
continue serving well after he leaves o ce.
Obama's judicial nominees look di er-
ent from their predecessors. In an inter-
view in the Oval O ce, the President
told me, "I think there are some particu-
lar groups that historically have been
underrepresented---like Latinos and
Asian-Americans---that represent a larger
and larger portion of the population. And
so for them to be able to see folks in robes
that look like them is going to be import-
ant.When I came into o ce, I think there
was one openly gay judge who had been
appointed. We've appointed ten."
The statistics a rm Obama's boast.
Sheldon Goldman, a professor at the
University of Massachusetts at Amherst
and a scholar of judicial appointments,
said, "The majority of Obama's appoint-
ments are women and nonwhite males."
Forty-two per cent of his judgeships have
gone to women. Twenty-two per cent of
George W. Bush's judges and twenty-
nine per cent of Bill Clinton's were
women. Thirty-six per cent of President
Obama's judges have been minorities,
compared with eighteen per cent for
Bush and twenty-four per cent for Clin-
ton. Obama said that the new makeup
of the federal bench "speaks to the larger
shifts in our society, where what's always
been this great American strength---this
stew that we are---is part and parcel of
every institution, both in the public sec-
tor as well as in the private sector."
Beyond diversity, the story of Obama's
influence on the courts is more complex.
Indeed, it could serve as a metaphor for
his Presidency: symbolically rich but sub-
stantively hazy. Obama took o ce after
years of intense conservative focus on the
courts. President George W. Bush spoke
ILLUSTRATION BY BARRY BLITT